Infrastructure Bill (HC Bill 154)

(6) The notice is a valid notice for the purposes of this code, but the
person giving the notice must bear any costs incurred by the
operator as a result of the notice not being in that form.

(7) In any proceedings under this code a certificate issued by OFCOM
5stating that a particular form of notice has been prescribed by
them as mentioned in this paragraph is conclusive evidence of that
fact.

Prescription of notices by OFCOM

87 (1) OFCOM must prescribe the form of a notice to be given under
10each provision of this code that requires a notice to be given.

(2) OFCOM may from time to time amend or replace a form
prescribed under sub-paragraph (1).

(3) Before prescribing a form for the purposes of this code, OFCOM
must consult operators and such other persons as OFCOM think
15appropriate.

(4) Sub-paragraph (1) does not apply to the amendment or
replacement of a form prescribed under sub-paragraph (1).

Procedures for giving notice

88 (1) A notice given under this code must not be sent by post unless it
20is sent by a registered post service or by recorded delivery.

(2) For the purposes, in the case of a notice under this code, of section
394 of this Act (service of notifications and other documents) and
section 7 of the Interpretation Act 1978 (references to service by
post), the proper address of a person (“P”) is—

(a) 25if P has given the person giving the notice an address for
service under this code, that address, and

(b) otherwise, the address given by section 394.

(3) Sub-paragraph (4) applies if it is not practicable, for the purposes
of giving a notice under this code, to find out after reasonable
30enquiries the name and address of a person who is the occupier of
land for the purposes of this code.

(4) A notice may be given under this code to the occupier —

(a) by addressing it to a person by the description of
“occupier” of the land (and describing the land), and

(b) 35by delivering it to a person who is on the land or, if there is
no person on the land to whom it can be delivered, by
affixing it, or a copy of it, to a conspicuous object on the
land.

(5) Sub-paragraph (6) applies if it is not practicable, for the purposes
40of giving a notice under this code, to find out after reasonable
enquiries the name and address of the owner of an interest in land.

(6) A notice may be given under this code to the owner—

(a) by addressing it to a person by the description of “owner”
of the interest (and describing the interest and the land),
and

(b) by delivering it to a person who is on the land or, if there is
5no person on the land to whom it can be delivered, by
affixing it, or a copy of it, to a conspicuous object on the
land.

Part 16 Enforcement and dispute resolution

10Introductory

89 This Part of this code makes provision about—

(a) the court or tribunal by which agreements and rights
under this code may be enforced,

(b) the meaning of references to “the court” in this code, and

(c) 15the power of the Secretary of State by regulations to confer
jurisdiction under this code on other tribunals.

Enforcement of agreements and rights

90 An agreement under this code, and any right conferred by this
code, may be enforced—

(a) 20in the case of an agreement imposed by a court or tribunal,
by the court or tribunal which imposed the agreement,

(b) in the case of any agreement or right, by any court or
tribunal which for the time being has the power to impose
an agreement under this code, or

(c) 25in the case of any agreement or right, by any court of
competent jurisdiction.

Meaning of “the court”

91 (1) In this code “the court” means—

(a) in relation to England and Wales, the county court,

(b) 30in relation to Scotland, the sheriff, and

(c) in relation to Northern Ireland, a county court.

(2) Sub-paragraph (1) is subject to provision made by regulations
under paragraph 92.

Power to confer jurisdiction on other tribunals

92 (1) 35The Secretary of State may by regulations provide for a function
conferred by this code on the court to be exercisable by any of the
following—

(a) in relation to England and Wales, the First-tier Tribunal;

(b) in relation to England and Wales, the Upper Tribunal;

(c) 40in relation to Scotland, the Lands Tribunal for Scotland;

(d) in relation to Northern Ireland, the Lands Tribunal for
Northern Ireland.

(2) Regulations under sub-paragraph (1) may make provision for the
function to be exercisable by a tribunal to which the regulations
apply—

(a) instead of by the court, or

(b) 5as well as by the court.

(3) The Secretary of State may by regulations make provision—

(a) requiring proceedings to which regulations under sub-
paragraph (1) apply to be commenced in the court or in a
tribunal to which the regulations apply;

(b) 10enabling the court or such a tribunal to transfer such
proceedings to a tribunal which has jurisdiction in relation
to them by virtue of such regulations or to the court.

(4) The power in section 402(3)(c) for regulations under sub-
paragraph (1) or (3) to make consequential provision includes
15power to make provision which amends, repeals or revokes or
otherwise modifies the application of any enactment.

Applications to the court

93 Regulation 3 of the Electronic Communications and Wireless
Telegraphy Regulations 2011 (SI 2011/1210SI 2011/1210) makes provision
20about the time within which certain applications to the court
under this code must be determined.

Appeals in Northern Ireland

94 Article 60 of the County Courts (Northern Ireland) Order 1980
(ordinary appeals from the county court in civil cases) is to apply
25in relation to any determination of the court in Northern Ireland
under this code in the same manner as it applies in relation to any
decree of the court made in the exercise of the jurisdiction
conferred by Part 3 of that Order.

Part 17 30Supplementary provisions

Relationship between this code and existing law

95 (1) This code does not authorise the contravention of any provision of
an enactment passed or made before the coming into force of this
code.

(2) 35Sub-paragraph (1) does not apply if and to the extent that an
enactment makes provision to the contrary.

Relationship between this code and agreements with operators

96 (1) This code does not affect any rights or liabilities arising under an
agreement to which an operator is a party.

(2) 40Sub-paragraph (1) does not apply in relation to paragraph 61(2) to
(5), paragraph 95 or Parts 3 to 6 of this code.

Ownership of property

97 The ownership of property does not change merely because the
property is installed on or under, or affixed to, any land by any
person in exercise of a right conferred by or in accordance with
5this code.

Conduits

98 (1) This code does not authorise an operator to do anything inside a
relevant conduit without the agreement of the authority with
control of the conduit.

(2) 10The agreement of the authority with control of a public sewer is
sufficient in all cases to authorise an operator to exercise any of the
rights under this code in order to do anything wholly inside that
sewer.

(3) In this paragraph the following expressions have the same
15meanings as in section 98 of the Telecommunications Act 1984—

(a) “public sewer” and “relevant conduit”;

(b) references to the authority with control of a relevant
conduit.

Duties for OFCOM to prepare codes of practice

99 (1) 20OFCOM must prepare and publish a code of practice dealing
with—

(a) the provision of information for the purposes of this code
by operators to persons who occupy or have an interest in
land;

(b) 25the conduct of negotiations for the purposes of this code
between operators and such persons;

(c) the conduct of operators in relation to persons who occupy
or have an interest in land adjoining land on, under or over
which electronic communications apparatus is installed;

(d) 30such other matters relating to the operation of this code as
OFCOM think appropriate.

(2) OFCOM must prepare and publish standard terms which may
(but need not) be used in agreements under this code.

(3) OFCOM may from time to time—

(a) 35amend or replace a code of practice or standard terms
published under this paragraph;

(b) publish the code or terms as amended or (as the case may
be) the replacement code or terms.

(4) Before publishing a code of practice or standard terms under this
40paragraph, OFCOM must consult operators and such other
persons as OFCOM think appropriate.

(5) Sub-paragraph (4) does not apply to—

(a) the publication of amendments to a code of practice or
standard terms, or

(b) the publication of a replacement code or replacement
terms.

Application of this code to the Crown

100 (1) This code applies in relation to land in which there subsists, or at
5any material time subsisted, a Crown interest as it applies in
relation to land in which no such interest subsists.

(2) In this code “Crown interest” means—

(a) an interest which belongs to Her Majesty in right of the
Crown,

(b) 10an interest which belongs to Her Majesty in right of the
Duchy of Lancaster,

(c) an interest which belongs to the Duchy of Cornwall, or

(d) an interest which belongs to a Government department or
which is held in trust for Her Majesty for the purposes of a
15Government department.

(3) This includes, in particular—

(a) an interest which belongs to Her Majesty in right of Her
Majesty’s Government in Northern Ireland, and

(b) an interest which belongs to a Northern Ireland
20department or which is held in trust for Her Majesty for the
purposes of a Northern Ireland department.

(4) Where an agreement is required by this code to be given in respect
of any Crown interest subsisting in any land, the agreement must
be given by the appropriate authority.

(5) 25Where a notice under this code is required to be given in relation
to land in which a Crown interest subsists, the notice must be
given by or to the appropriate authority (as the case may require).

(6) In this paragraph “the appropriate authority” means—

(a) in the case of land belonging to Her Majesty in right of the
30Crown, the Crown Estate Commissioners or, as the case
may be, the government department that has the
management of the land in question;

(b) in the case of land belonging to Her Majesty in right of the
Duchy of Lancaster, the Chancellor of the Duchy of
35Lancaster;

(c) in the case of land belonging to the Duchy of Cornwall,
such person as the Duke of Cornwall, or the possessor for
the time being of the Duchy of Cornwall, appoints;

(d) in the case of land belonging to Her Majesty in right of Her
40Majesty’s Government in Northern Ireland, the Northern
Ireland department having the management of the land in
question;

(e) in the case of land belonging to a government department
or a Northern Ireland department or held in trust for Her
45Majesty for the purposes of a government department or a
Northern Ireland department, that department.

(7) Any question as to the authority that is the appropriate authority
in relation to any land is to be referred to the Treasury, whose
decision is final.

(8) Paragraphs 51 (offence in relation to transport land rights) and
572(5) (offence in relation to notices on overhead apparatus) do not
apply where this code applies in the case of the Secretary of State
or a Northern Ireland department by virtue of section 106(3)(b).

Meaning of “occupier”

101 (1) References in this code to an occupier of land are to the occupier
10of the land for the time being.

(2) References in this code to an occupier of land, in relation to a
footpath or bridleway that crosses and forms part of agricultural
land, are to the occupier of that agricultural land.

(3) Sub-paragraph (4) applies in relation to land which is—

(a) 15a street in England and Wales or Northern Ireland, other
than a footpath or bridleway within sub-paragraph (2), or

(b) a road in Scotland, other than such a footpath or
bridleway.

(4) References in this code to an occupier of land—

(a) 20in relation to such a street in England and Wales, are to the
street managers within the meaning of Part 3 of the New
Roads and Street Works Act 1991,

(b) in relation to such a street in Northern Ireland, are to the
street managers within the meaning of the Street Works
25(Northern Ireland) Order 1995 (SI 1995/3210 (NI 19)SI 1995/3210 (NI 19)), and

(c) in relation to such a road in Scotland, are to the road
managers within the meaning of Part 4 of the New Roads
and Street Works Act 1991.

(5) Sub-paragraph (6) applies in relation to land which—

(a) 30is unoccupied, and

(b) is not a street in England and Wales or Northern Ireland or
a road in Scotland.

(6) References in this code to an occupier of land, in relation to land
within sub-paragraph (5), are to—

(a) 35the person (if any) who for the time being exercises powers
of management or control over the land, or

(b) if there is no person within paragraph (a), to every person
whose interest in the land would be prejudicially affected
by the exercise of a code right in relation to the land.

(7) 40In this paragraph—

(a) “agricultural land” includes land which is being brought
into use for agriculture, and

(b) references in relation to England and Wales to a footpath
or bridleway include a restricted byway.

Arbitrations in Scotland

102 Until the Arbitration (Scotland) Act 2010 is in force in relation to
any arbitrations carried out under or by virtue of this code, that
Act applies as if it were in force in relation to those arbitrations.

5General interpretation

103 (1) In this code—

• “agriculture” and “agricultural”—

  (a)

  in relation to England and Wales, have the same
  meanings as in the Highways Act 1980,

  (b)

  10in relation to Scotland, have the same meanings as in
  the Town and Country Planning (Scotland) Act 1997,
  and

  (c)

  in relation to Northern Ireland, have the same
  meanings as in the Agriculture Act (Northern
  15Ireland) 1949;

• “bridleway” and “footpath”—

  (a)

  in relation to England and Wales, have the same
  meanings as in the Highways Act 1980,

  (b)

  in relation to Scotland, have the same meanings as
  20Part 3 of the Countryside (Scotland) Act 1967, and

  (c)

  in relation to Northern Ireland, mean a way over
  which the public have, by virtue of the Access to the
  Countryside (Northern Ireland) Order 1983 (SI 1983/
  1895 (NI 18)), a right of way (respectively) on
  25horseback and on foot;

• “code agreement” has the meaning given by paragraph 29(5);

• “Crown interest” has the meaning given by paragraph 100(2)
  and (3);

• “enactment” includes—

  (a)

  30an enactment comprised in subordinate legislation
  within the meaning of the Interpretation Act 1978,

  (b)

  an enactment comprised in, or in an instrument made
  under, a Measure or Act of the National Assembly for
  Wales,

  (c)

  35an enactment comprised in, or in an instrument made
  under, an Act of the Scottish Parliament, and

  (d)

  an enactment comprised in, or in an instrument made
  under, Northern Ireland legislation;

• “land” does not include electronic communications
  40apparatus;

• “landowner” has the meaning given by paragraph 37(1);

• “lease” includes (except in relation to Scotland) any leasehold
  tenancy (whether in the nature of a head lease, sub-lease or
  underlease) and any agreement to grant such a tenancy but
  45not a mortgage by demise or sub-demise;

• “relevant person” has the meaning given by paragraph 19(1);

• “restricted byway” has the same meaning as in Part 2 of the
  Countryside and Rights of Way Act 2000;

• “road”—

  Infrastructure BillPage 177

  (a)

  in relation to Scotland, has the same meaning as in
  Part 4 of the New Roads and Street Works Act 1991;

  (b)

  in relation to Northern Ireland, has the same meaning
  as in the Roads (Northern Ireland) Order 1993 (SI
  51993/3160 (NI 15));

• “site provider” has the meaning given by paragraph 30(1);

• “street”—

  (a)

  in relation to England and Wales, has the same
  meaning as in Part 3 of the New Roads and Street
  10Works Act 1991, and

  (b)

  in relation to Northern Ireland, has the same meaning
  as in the Street Works (Northern Ireland) Order 1995
  (SI 1995/3210 (NI 19)SI 1995/3210 (NI 19)).

(2) In this code, references to the alteration of any apparatus include
15references to the moving, removal or replacement of the
apparatus.”

Section 49

SCHEDULE 9 The electronic communications code: consequential amendments

Landlord and Tenant Act 1954 (c. 56)Landlord and Tenant Act 1954 (c. 56)

1 20In section 23 of the Landlord and Tenant Act 1954 (tenancies to which
provisions on security of tenure for business etc tenants apply) after
subsection (4) insert—

“(5) This Part does not apply to a tenancy the primary purpose of which
is to grant code rights within the meaning of Schedule 3A to the
25Communications Act 2003 (the electronic communications code).”

Landlord and Tenant Act 1987 (c. 31)Landlord and Tenant Act 1987 (c. 31)

2 In section 4(2) of the Landlord and Tenant Act 1987 (disposals which are not
relevant disposals for purposes of tenants’ right of first refusal) after
paragraph (da) insert—

“(da) 30the conferral of a code right under Schedule 3A to the
Communications Act 2003 (the electronic communications
code);”.

Landlord and Tenant (Covenants) Act 1995 (c. 30)Landlord and Tenant (Covenants) Act 1995 (c. 30)

3 In section 5 of the Landlord and Tenant (Covenants) Act 1995 (tenant
35released from covenants on assignment of tenancy), after subsection (4)
insert—

“(5) This section is subject to paragraph 15(4) of Schedule 3A to the
Communications Act 2003 (which places conditions on the release of
an operator from liability under an agreement granting code rights
40under the electronic communications code).”

Business Tenancies (Northern Ireland) Order 1996 (SI 1996/725 (NI 5)SI 1996/725 (NI 5))

4 In Article 4(1) of the Business Tenancies (Northern Ireland) Order 1996
(tenancies to which the Order does not apply) after paragraph (k) insert—

“(l) a tenancy the primary purpose of which is to grant code
5rights within the meaning of Schedule 3A to the
Communications Act 2003 (the electronic communications
code).”

Land Registration Act 2002 (c. 9)Land Registration Act 2002 (c. 9)

5 The Land Registration Act 2002 is amended as follows.

6 10In Schedule 1 (unregistered interests which override first registration) after
paragraph 9 insert—

“Rights under the electronic communications code

9A A code right within the meaning of Schedule 3A to the
Communications Act 2003 (the electronic communications code),
15other than a right conferred by a lease.”

7 In Schedule 3 (unregistered interests which override registered dispositions)
after paragraph 9 insert—

“Rights under the electronic communications code

9A A code right within the meaning of Schedule 3A to the
20Communications Act 2003 (the electronic communications code),
other than a right conferred by a lease.”

Communications Act 2003 (c. 21)Communications Act 2003 (c. 21)

8 The Communications Act 2003 is amended as follows.

9 (1) Section 394 (service of notifications and other documents) is amended as
25follows.

(2) In subsection (2) omit paragraph (d).

(3) After subsection (10) insert—

“(11) In its application to Schedule 3A this section is subject to paragraph
88 of that Schedule.”

10 (1) 30Section 402 (power of Secretary of State to make orders and regulations) is
amended as follows.

(2) In subsection (2) after paragraph (a) insert—

“(aa) regulations under paragraph 24 of Schedule 3A,

(ab) regulations under paragraph 92 of that Schedule which
35amend, repeal or modify the application of primary
legislation,”.

(3) After subsection (2) insert—

“(2A) A statutory instrument containing (whether alone or with other
provisions)—

(a) regulations under paragraph 24 of Schedule 3A, or

(b) regulations under paragraph 92 of that Schedule which
amend, repeal or modify the application of primary
legislation,

5may not be made unless a draft of the instrument has been laid
before and approved by a resolution of each House of Parliament.”

(4) After subsection (3) insert—

“(4) In this section “primary legislation” means—

(a) an Act of Parliament,

(b) 10a Measure or Act of the National Assembly for Wales,

(c) an Act of the Scottish Parliament, or

(d) Northern Ireland legislation.”

Consequential repeals

11 In consequence of the amendments made by section 49 and this Schedule,
15Schedule 3 to the Communications Act 2003 is repealed.